Justice Byron White once wrote an opinion for a sharply divided Supreme Court saying that reporters who promise sources anonymity can be forced to break that pledge with the threat of jail. But the other day, for another sharply divided Supreme Court, he wrote that newspapers which break a reporter's pledge and identify a source can be sued for damages.
In the most recent case, late in a campaign a Minnesota political adviser leaked to reporters damaging but very misleading information about his client's opponent with the understanding that he would not be identified. The newspapers' editors viewed it as an old-fashioned dirty trick and decided his behavior and relationship were part of the story. He was news. They printed his name. He sued and won $200,000 in damages for the broken promise. The state's highest court threw the award out on the grounds that the First Amendment's free press clause protected the newspapers. Five members of the Supreme Court think otherwise.
We think the state court and the four dissenters on the Supreme Court were right. This is not just special-interest pleading. The First Amendment, as Justice David Souter explained succinctly in dissenting from the majority opinion, exists for the public's sake.
He said the court's opinion in the source case, "suggests. . . a conception of the First Amendment rights as those of the speaker alone, with a value that may be measured without reference to the importance of the information to public discourse. But freedom of the press is ultimately founded on the value of enhancing such discourse for the sake of a citizenry better informed and thus more prudently self-governed." Quoting an earlier opinion, he said, "The First Amendment goes beyond protection of the press and the self-expression of individuals to prohibit government from limiting the stock of information from which members of the public may draw."
It may have happened before, but we do not recall a Supreme Court decision in which truthful reporting about a political source's comments and activities involving a political subject in a political campaign -- "the classic First Amendment context," as the Minnesota court said -- was ruled illegal. To the degree that this opinion impairs future reporting on political and governmental news, the public will suffer.